Art and science thrive on criticism, science particularly so, because the scientific process is usually a progress from an idea to a fact, from a possibility through probability to truth. You cannot make that journey and reach your destination – truth – unless there is a great deal of criticism and peer review along the route. Even when you have reached what is universally accepted as the truth, you may still be wrong and so the criticism must continue.
In science the creation of truth is hindered by commercial interests. Large drug companies and interest groups have tried to block criticism by using the defamation laws. In England and Wales, where these laws are very harsh and where the costs of being sued are frighteningly large, many drug companies and interest groups have used either defamation proceedings of the threat of them to stifle comment and thus block the journey to the truth.
They can do this because although “justification” is a defence to a defamation claim justification is rather technically defined in a way that makes truth sometimes irrelevant. When it comes to writing scientific articles that may offend some interests you may now rely on a defence of having made a fair comment, and provided your comment is fair,, you may succeed in your defence, but there is still not “public interest” defence, and even if there were such a defence, it is not so much the ultimate success or failure of the proceedings that worry potential defendants in defamation cases, but the sheer cost and risk of defending them.
If I were to publish some criticism of say a drug, the drug company could completely drown me in proceedings that I could not afford to defend. It is the same principle adopted by mighty nations – that might is right. Defending a libel action might cost a genuine scientist hundreds of thousands of pounds, which is a very small amount to a big corporation. On the other hand a misguided scientist might cause hundreds of millions of pounds damage to a drug company, if he were to wrongly criticise a product, as well as harm to those to whom the product may bring benefits.
This is a field where it is easier to spot the injustice than it is to remedy the injustice. Certainly a public interest defence would help someone thinking of publishing something controversial, but a successful public interest defence may leave someone whose product or reputation has been defamed without compensation for the damage done. It puts the onus on someone bringing a defamation claim to prove malice (a difficult thing to prove because it has to be inferred from facts) or recklessness, which has to be judged objectively.
Libel traditionally protects from public odium or contempt. It also instils great fear into journalists unless their employer has deep pockets and will financially benefit more from publishing the libel than from paying libel compensation. Many people have been undone by libel actions, where criminal perjury proceedings follow libel actions. Oscar Wilde was one of the first, but others include Geoffrey Archer and other modern politicians. Many have been unjustly enriched by libel actions, such as Robert Maxwell.
I do not know the solution to the problem of allowing free fair comment without allowing that comment to stray into areas which are unfairly damaging. Perhaps we can look more closely at removing the financial reward from libelling people, and perhaps larger more prominent apologies. If libel damages were reduced and the press had to devote the first page to detailed sincere corrections we might see fewer libels in the press, and perhaps is similar considerations were to apply to radio and television, media journalism might be fairer.